Borck v. Myrick

Filing 44

Opinion and Order: Petitioners Petition for Writ of Habeas Corpus 2 is denied and this case is dismissed. A Certificate of Appealability is denied on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 3/28/2017 by Judge Michael J. McShane. (cp)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

RUSSEL PATRICK BORCK,

Case No. 2:15-CV-00043-MC

Petitioner,

OPINION AND ORDER

v.
JOHN MYRICK, Superintendent,
Two Rivers Correctional Institution,
Respondent.
______________________________
McShane, Judge:
Petitioner Russel Patrick Borck brings this petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging ineffective assistance of counsel. For the reasons explained below, the
petition is denied.
BACKGROUND
In August 2005, Borck, then 21 years old, was released from prison following a felony
conviction for Sexual Abuse III. Not long after, Borck went to his half-sister’s home to see his
nieces and have dinner. While in prison, Borck sent several letters to his then 11 year old niece
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J.1 These letters, later introduced at trial, were wildly innapropriate and clearly demonstrate
Borck was grooming J for future sexual abuse. In the letters, Borck asked if J remained a virgin
and asked J to get a camera and send pictures of herself in a bikini. Borck dotted the “i” in J’s
name with a heart. Borck suggested that upon his release, he and J could perhaps go camping
alone.
Shortly after Borck arrived at the home, he barged unannounced into the room J2 shared
with her 11 year old half-sister M. As the girls were showering, their bedroom door was closed.
The girls, in various stages of undress, yelled at Borck (then attempting to peer around the door)
to leave. Ultimately, M had to slam the door on Borck’s head to get Borck to leave.
Borck returned shortly thereafter. Although the father attempted to get Borck out of the
room and attempted to make sure the door remained open, Borck kept returning to the room and
closing the door. Once in the room, Borck attempted to take pictures of the girls’ buttocks. Borck
attempted to pull down the M’s pants, exposing the crack at the top of M’s buttocks. The girls
asked Borck to stop.
Borck then told the girls about his sexual prowess. Borck told the girls he had had sex
three times that day with his girlfriend. The girls stated Borck removed condoms from his wallet
and told them they would need the condoms later. Borck sat on the bed behind M and, over M’s
objections, began massaging her shoulders. Borck commented on the girls’ breast and bra sizes.
Borck told the girls that some girls reached orgasm simply from having their nipples licked. The
father heard Borck say “orgasm” and promptly escorted Borck from the home.3

1

As this case involves minor victims, I use initials for any minors.
In August 2005 J was 12 years old.
3
The transcript contains a scrivenor’s error throughout by listing “organism” for the intended “orgasm.” I use the
intended term throughout this opinion.
2

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The father then asked the girls to separately write down what happened. Essentially, the
girls described the conduct mentioned above. The father then called 911. An officer arrived and
the girls essentially described the above conduct. Another officer, trained in interviewing
children, separately interviewed M and J the next day. The officer then interviewed Borck. Borck
did not deny touching M’s breast. Instead, he simply stated that he could have touched her breast
while they engaged in “horseplay.” Borck also admitted discussing orgasms with the girls.
Borck was charged with several counts of Sexual Abuse I and harassment. The first trial
ended in a mistrial when witnesses mentioned Borck’s earlier time in prison. At the second trial,
the jury convicted Borck of three counts of Sexual Abuse I, three counts of Harassment, and
three counts of Endangering the Welfare of a Minor. Borck was sentenced to 75 months on each
Sex Abuse count, with two counts running consecutive.
The Oregon Court of Appeals affirmed Borck’s conviction in a written decision. The
Oregon Supreme Court denied review. Borck then filed a petition for post-conviction relief
(“PCR”). After a hearing, the court denied relief. The Oregon Court of Appeals affirmed without
opinion and the Oregon Supreme Court denied review.
Borck then filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Borck raised four grounds for relief, but only one claim, of ineffective assistance of counsel, is at
issue here.4 Borck alleges he received ineffective assistance when counsel failed to object to
certain testimony from Michele Warner, the state’s expert witness. Warner, a psychologist,
conducted a child abuse evaluation of M at Juliette’s House a few days after the incident.

4

Borck’s other grounds for relief raised in the petition are waived as he did not attempt to set forth or meet the legal
standards in his brief in support of the petition. Renderos v. Ryan, 469 F.3d 788, 800 (9th Cir. 2006).

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Warner testified that in private practice, she interviewed approximately 350 children and,
“I would estimate of the 350 that probably at least 300 [had been victims of sex abuse crimes].”
ECF No. 25-1, 505. The state inquired:
Q. Do you have specialized knowledge about the actions and reactions of victims
that would help this jury in understanding the actions of the child who has been a
victim of a sex abuse offense?
A. Yes. That’s part of the training that we go through. One of the most important
things to know is that each child is an individual and there is not a particular
reaction that we look for and say, oh, yeah, that child has been abused.
Generally speaking, you see the same kinds of distress as you see for any type of
emotional stress, you know, maybe if there is a divorce in the family, somebody
has been killed, any other kind of trauma, when something is wrong, children,
some children react emotionally, some regress to younger kinds of behavior like
wetting the bed, sucking their thumbs again, doing those kinds of things.
Again, that doesn’t specifically mean they were sexually abused, but it can mean
they are under a lot of stress and would fit with that type of thing.
There are other children who maybe are, have been through lots of kinds of
trauma and may appear to not react at all. That they just kind of learn how to shut
this stuff out. And as you are talking to them, they maybe telling you details of
sexual abuse in the same manner that you would expect them to tell you what they
had for lunch the day before. So there is a lot of variety is the bottom line.
ECF No. 25-1, 505-06.
Based on the above testimony, the court granted the state’s motion to offer Warner as an
expert witness “who can assist the jury in understanding the reactions of a child victim of sex
offenses.” ECF No. 25-1, 506-07.
The state then asked of Warner:
Q. Is it very often that there is a witness, a direct witness to child sex abuse that
occurs?
A. Almost never in my experience.
ECF No. 25-1, 514.

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In describing M’s description of the incidents, Warner testified:
The specifics of what [M] said was that [Borck] had touched her breasts with both
hands two or maybe three times on top of her clothes. That he had touched her
bottom again on top of her clothes. She was very specific that everything
happened on top of her clothes.
That he had pulled her pants down exposing her underwear, but her underwear
wasn’t pulled down. That he had shown her a condom and told her that she would
need it later.
That he had taken, he had used his stepsister’s digital camera to take pictures of
both [J], her stepsister and her of their bottoms as they were bending over, but
again they were, they were dressed. She knew that because he showed them the
pictures afterwards.
She told me about him telling the girls that he had had sex with his girlfriend three
times that day. He also told them that he knew girls who could have orgasms just
by having their nipples licked. [M] was clear she didn’t understand what that
meant, but she knew it was something disgusting, in her words.
He also had talked about, about preferring small boobs on girls, and was trying to
compare [the girls] and had kind of pulled their shirts down tight against their
body so that he could estimate a cup size on each of them.
ECF No. 25-1, 522-23.
Warner concluded many of Borck’s actions qualified as “grooming behavior”:
His trying to watch the girls as they are undressing. Walking into the bedroom
without knocking. Some of the wrestling around is a way of desensititzing kids.
Talking about his own sexual behavior with his girlfriend, making comments
about their bodies, their breast sizes.
Showing [M] the condom for some unkown reason. You know, and certainly the
pulling her pants down seeing if she will tolerate that. Putting his hands on her
breasts even though it was brief. The most, most everything that she described
could easily be seen as grooming behavior to see if at some time in the future he
could get her to go farther with him.
ECF No. 25-1, 524.
Warner testified nothing in Ms’ interview suggested she presented a memorized story or
that someone suggested what to say. Warner testified that had M simply wanted to get Borck in

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trouble, she would have made the touching seem more intrusive, i.e., would have complained of
under the clothes touching of her genitals. ECF No. 25-1, 535.
Borck’s attorney did not object to Warner’s testimony. As noted, Borck argues the failure
to object violated his right to effective assistance of counsel.
DISCUSSION
Petitioner alleges ineffective assistance of counsel based on trial counsel’s failure to
object to “vouching” testimony by Warner, the therapist who conducted the assessment of M See
Strickland v. Washington, 466 U.S. 668 (1984). The PCR court denied these claims, and
respondent maintains that the PCR court’s decision is entitled to deference under 28 U.S.C. §
2254(d). See Harrington v. Richter, 562 U.S. 86, 101 (2011) (on habeas review of ineffective
assistance claims, a state court decision “must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland standard itself”).
A federal court may not grant a habeas petition regarding any claim “adjudicated on the
merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is
“contrary to” clearly established federal law if it applies incorrect Supreme Court authority or
reaches a contrary result in a case with facts “materially indistinguishable” from relevant
Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529
U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly
established federal law if the state court identifies the correct legal principle but applies it in an
“objectively unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per
curiam); Williams, 529 U.S. at 407-08, 413. “Even if the federal habeas court concludes that the
state court decision applied clearly established federal law incorrectly, relief is appropriate only
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if that application is also objectively unreasonable.” Penry v. Johnson, 532 U.S. 782, 793 (2001);
see also Early v. Packer, 537 U.S. 3, 11 (2002) (state court decisions that are not “contrary to”
Supreme Court precedent may be set aside only “if they are not merely erroneous, but ‘an
unreasonable application’ of clearly established federal law, or are based on ‘an unreasonable
determination of the facts’”).
Under the well-established Supreme Court precedent of Strickland, a prisoner alleging
ineffective assistance of counsel must show that 1) “counsel’s performance was deficient,” and
2) counsel’s “deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
“Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from
a breakdown in the adversary process that renders the result unreliable.” Id. Judicial review of an
attorney's performance under Strickland is “highly deferential”; it carries a “strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance,” which
under the relevant circumstances, “might be considered sound trial strategy.” Id. at 689 (citation
omitted).
The parties disagree over the amount of deference this Court owes to the state court PCR
determination. In its written decision denying the same vouching arguments Borck makes here,
the PCR court concluded:
Petitioner has not proven that defense counsel committed any errors during his
representation. Specifically, it was not error that objection was not made to the
testimony of Michelle Warner, in light of the law that governed the case at that
time. Warner did not offer a “diagnosis,” which might be seen as bolstering the
victim’s testimony. Defense counsel was able to ilicit some useful testimony on
cross examination of Warner.
At the time of Petititioner’s trial, the State was permitted to comment on
“grooming behavior,” and especially because of Petitioner’s claim that he was
engaged in innocent play behavior, his conduct was relevant. . . . Even if any error
could be found, there was no material effect on the outcome of the case,
considering the strength of the evidence against petitioner, such as both victims’
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testimony . . . . There is no showing that the court would have entertained an
objection to Ms. Warner’s testimony.
ECF No. 24-3, 59-61.
Borck argues the state court simply got it wrong:
When Mr. Borck was tried for sex abuse, settled law in Oregon barred
prosecution witnesses from vouching for the credibility of complainants in child
sex cases. However, Mr. Borck’s trial counsel either did not understand or was
unaware of the many decisions holding such vouching to be per se prejudicial.
Trial counsel therefore repeatedly failed to object to multiple instances of
vouching testimony by the State’s “expert” witness, a child interviewer at
Juliette’s House, although, according to prevailing professional norms, a
reasonably competent lawyer would have objected and the testimony would have
been excluded. The post-conviction court did not measure counsel’s failings
according to prevailing professional norms but rather assumed that counsel’s
incorrect characterization of then-existing law was accurate, Resp. Ex. 124 at 12, and so unreasonably denied Mr. Borck relief.
Sur-Reply, 1-2 (emphasis added).
In other words, Borck challenges the PCR court’s application and interpretation of
Oregon law. But an error of state law will not justify relief in a federal habeas petition. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“Today, we reemphasize that it is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions.”). The
above hurdle would be no hurdle at all if a petitioner could avoid it simply by arguing that rather
than interpreting state law, the state PCR court merely “assumed that counsel’s incorrect
characterization of then-existing [state] law was accurate.” The PCR court concluded the trial
court would not have entertained an objection to Warner’s testimony based on Oregon law at the
time. As to Borck’s ineffective assistance claim based on that alleged failure to object, the PCR
court’s determination of that state-law issue bars federal relief based on that alleged error.

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More importantly, even assuming that the review here is de novo, Borck cannot establish
that counsel’s failure to object prejudiced him.5 Borck argues:
There was no physical evidence to corroborate the alleged abuse. The
complainant had a reputation for untruthfulness, and her story about what had
allegedly happened to her evolved each time she told it. The “expert” witness’s
improper opinions about the complainant’s credibility, therefore, were key to the
state winning it’s case.
Br. in Supp., 2, ECF No. 38.
I disagree. Of course there was no physical evidence corroborating the alleged abuse.
This case did not involve a forcible rape. The abuse here was two or three brief gropings of M’s
clothed breast. Although M may have had a reputation for untruthfulness, her step-mother, who
commented on M’s reputation for untruthfulness (after being compelled to answer the question),
also testified that despite that reputation, she had no reason to doubt M’s truthfulness as to the
specific allegations of abuse at issue here. And M’s accounts of the abuse largely mirrored those
of J, the only other witness to the abuse. J did not have a reputation for untruthfulness.
Finally, Warner’s testimony was not “key to the state winning it’s case.” In fact, as noted
by both the PCR court and Borck’s trial counsel, Warner’s testimony was somewhat helpful to
Borck given the circumstances. One would think that the prosecution would return at closing to
hammer home to the jury any “key” evidence necessary to win the case. But the state did not
even mention Warner’s alleged “vouching” about M’s credibility in its closing arguments.6 In
fact, Borck’s own counsel in closing arguments pointed to Warner’s testimony as being helpful
to the defense. For instance, counsel noted the discrepancies in the girls’ accounts contradicted
5

The reader should not infer that because I discuss the prejudice prong, I agree with Borck’s argument that de novo
review is appropriate because the PCR court made a “legally unsound” determination of the Oregon “law that
governed the case at the time.” Br. in Supp., 12. As noted, far from mandating de novo review, this reexamination of
a state-court determination on a state-law question precludes federal habeas relief. Estelle, 502 U.S. at 67-68.
6
The prosecution briefly mentioned Warner’s testimony in closing, but only as it related to Borck’s letters and how
they constituted “grooming.” ECF No. 25-1, 623. That brief mention, on a separate topic is the only mention of
Warner in the prosecution’s closing.

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Warner’s testimony that the main details of a sexual assault victim tend to remain constant over
time. ECF No. 25-1, 646. Counsel argued, “And what I am focusing on here is the circumstances
are not conducive to sexual abuse.” ECF No. 25-1, 646. This again referenced Warner’s
testimony. Counsel noted:
Both girls were together all the time. Again, Ms. Warner testified very, very, very
specifically that is not consistent with sex abuse. You heard her say that. There
are rarely if ever witnesses to sex abuse. She said that. There was never not a
witness in this case. Jaimie was there the entire time.
****
It is still ligh outside. The lights are on always in the room. Never asked to take
anybody, you know, to a private place that we talked about. And it is very well lit.
Sixteen feet away from the father of [M], 16 feet. That’s what David said right
here. He said 16 feet down the hallway. That is not conducive of an environment
that is set up for sexual abuse. It is not. Ms. Warner testified to that.
Again, it was clear that there were no signs of any arousal on the part of Russell.
That’s uncomfortable. I know we don’t like talking about that, and obviously I
was extremely careful with the children that were on the stand to ask the question.
****
Another circumstances surrounding that household that night, there’s no evidence
whatsoever that anyone, anyone was requested to touch Russell. Nobody said
that. Nobody say, yeah, he asked me to touch him here. He asked me to rub his
shoulders, nobody said that.
Do you have to have that? Of course, you don’t. But we are talking about an
environment conducive to sexual abuse.
****
And the final think I am going to talk about under this category is there’s no
evidence whatsoever that he was ever, that he ever asked anyone to keep anything
from their parents. They never said, you know, I won’t, don’t tell mom and dad
about what we are doing back here. 16 feet away. Witness right there the whole
time.
ECF No. 25-1, 647 – 649.

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Counsel noted Borck was never aroused, never asked the girls to touch him, and never
asked the girls to keep anything secret from their parents. Counsel again pointed to Warner’s
testimony and attempted to contrast that with the girls’ allegedly evolving statements. Counsel
pointed to Warner’s testimony that children could easily be manipulated by adults, perhaps by
the father. Only in rebuttal, after the defense raised the issue, did the prosecution point to
Warner’s testimony that the main allegations of sexual assault victims would tend to remain
consistent over time. In contrast to the defense, the state attempted to show the jury that although
the surrounding details of the allegations may have evolved, the main details remained
consistent.
Borck’s stategy at trial corresponds with the affidavit counsel submitted during Borck’s
PCR proceedings:
10. Many aspects of Warner’s testimony, in my opinion, helped our case because
she testified that there is almost never a direct witness to child sexual abuse.
However, in this case, the state’s theory was exactly that – that the sexual abuse
had occurred in the presence of [J]. Furthermore, in my recollection, Ms. Warner,
being characterized as an expert to assist the jury to understand the reaction of
child victims in sex offenses, helped us becaue there were many things that she
was trained to look for that she admitted during cross-examination that never
transpired in this case. That type of testimony, in my opinion at the time, only
bolstered our theory that the actions in this case were non-sexual. Her training and
experience bolstered our defense and, at the time of trial, I attempted to utilize her
as an expert to bolster our defense, without “opening the door” to petitioner’s
past. I thought that through Warner’s testimony we were able to point out how
petitioner’s actions were not consistent with typical sexual abusers, yet without
“opening the door” to John’s-type evidence. To that extent, I may have allowed
for more leeway to Warner’s testimony that I would have in other trials. It was a
strategic decision, which actually worked because it allowed me to argue those
points without the jury ever learning of petitioner’s past sexual abuse conviction.
Unfortunately, even with that evidence by Warner and the jury hearing nothing of
petitioner’s past conviction, the jury still found petitioner guilty.
****
12. Again, quite frankly, a lot of the things that Warner was trained to observe she
did not observe in this case and she actually characterized the fact that child sex
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abuse rarely occurs with a direct witness, but again that was the state’s theory in
this case. From my recollection, I felt that Ms. Warner actually benefitted the
defense in this particular case given the issues that were actually important to the
outcome of the trial.
ECF No. 24-3, 11-12.
While it is easy to look back in hindsight and argue Borck’s attorney erred, this is
prohibited when reviewing habeas petitions. Strickland, 466 U.S. at 689 (noting that while it is
“all too tempting” to second guess defense cousel following a conviction, “every effort [must] be
made to to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.”). Looking at these facts, and the challenges faced by counsel, it is clear Borck’s
conviction did not result from Warner’s testimony.
Borck’s own statements to the investigating officer utterly precluded counsel from even
attempting to argue that no contact occurred between Borck and M. The prosecution admitted
into evidence Borck’s statements during a police interview a few days after the incidents at issue.
In that interview, Borck admitted: knowing the girls were under 13-years-old; telling the girls
that some girls have orgasms when their nipples are stimulated; walking into the bedroom as M
changed clothes after showering (but denied seeing anything as the girl was behind a door);
telling J her bra “looks kind of small for you” and “I am a good judge of breast size;” ECF No.
25-1, 427 – 28. Borck did not think he told the girls they would be needing a condom later,
denied showing the girls a condom from his wallet, and denied trying to photograph their
buttocks. ECF No. 25-1, 428 – 49. In explaining any contact between himself and the girls,
Borck told the officer he wrestled with M and they were involved in “horseplay.” ECF No. 25-1,
430. In describing Borck’s description of this horseplay, the officer testified:

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Well, he was, he was speaking generally at this point. I don’t believe from
looking at my notes here that he was talking specifically about [M], but he told
me that he would grab the girls around the upper body while he stood behind
them, and that he would at times take them to the ground and quote tickle them.
He said during the horseplay, I could have felt [M’s] breasts. I asked if he
wouldn’t remember such an event, and he state to me quote no, it could have
happened, I just don’t remember it. And then he said to me quote, I can see how it
could have happened.
And then he said to me, quote [M], could have thought she was touched by me
when we were wrestling and playing around, we did that inside and outside.
ECF No. 25-1 430.
When asked whether he remembered slapping M on the buttocks, Borck told the officer,
“I probably did smack her on the butt while we were messing around.” ECF No. 25-1, 431.
Borck’s statements handcuffed his defense. Rather than argue no contact occurred and both girls
were outright liars, counsel was forced to argue any contact was innocent, without any sexual
intent. But this argument, that any contact was innocent “horseplay,” flew in the face of other
evidence. Although there was some evidence of Borck wrestling with a younger girl outside, the
breast grabbing occurred inside the house, where there was no evidence any “horseplay”
occurred. Additionally, Borck’s innocent explanation was contradicted by the sexually charged
letters he sent to then 11 year old J.
At closing, the state pounced on those letters. Borck asked the girl, his niece, how far she
had gone with boys and whether she was a virgin. Borck told his niece to have her mother buy
her a camera so the niece could send Borck photographs of herself in a bikini or a g string. Borck
asked his niece what size bra she wore and whether she wore regular panties, thongs, or g strings
underwear. Borck asked his niece to take pictures of herself in a bubble bath with bubbles
covering her body. In the last letter, Borck tells his niece that maybe they can go camping alone
together.
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Borck’s own letters significantly hindered his defense. Also hindering the defense was
the fact that Borck could not take the stand and offer any sort of explanation. As noted, the abuse
here occurred shortly after Borck was released from prison following his felony conviction on an
earlier sex crime. Borck’s counsel simply played with the hand Borck dealt him. Given the
letters, Borck’s own damaging statements, the relatively consistent testimony of the girls given
their ages, and the fact that Borck could not testify in his defense, counsel was forced to
emphasize any helpful facts, even if those facts came from the state’s own expert witness. In his
opening statement, Borck’s counsel explained:
However, what you are not going to hear is things that are consistent with sexual
abuse. You are going to hear about kids having a good time. About [Borck]
having a good time. About adults having a good time. But you are not going to
hear things that are consistent with someone who is intentionally trying to do
some of this conduct or knowingly doing it for that matter as well.
What you are not going to hear is you are not going to hear about any skin-to-skin
contact. You are not going to hear about any turning the lights off. You are going
to hear that everything was done in the presence of two kids. They were playing
around. They are having a good time. That’s what the evidence is going to show
you.
****
You are not going to hear any evidence of any one, of [Borck] asking anyone to
touch his private parts. You are not going to hear of any erections on his part. You
are not going to hear anything that would indicate sexual things you would hear if
it was there. It is not there. That’s important. The evidence you don’t hear is just
as important as the evidence that you will hear.
Tr., ECF No. 25-1, 333 – 335.
Counsel pursued this strategy when cross examining J:
Q. All right. And he never turned the lights off?
A. No.
Q. And he never asked anybody to take their clothes off?
A. Not that I recall.
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Q. Okay. He never started taking his clothes off?
A. No.
Q. He didn’t have any, any bulging or anyting coming out of his pants or anything
like that?
A. No.
ECF No. 25-1, 383 – 84.
Counsel then asked the following questions of M on cross examination:
Q. And I am going to ask you , this is kind of a sensitive question, but did you
ever see him have like a bulge in the front of his pants or anything like that?
A. No. I wasn’t paying attention.
Q. Okay. And did you know what an orgasm7 was before that night?
A. No.
Q. Okay. And he never asked you to touch him; is that right?
A. Right.
Q. And he never told you to not tell your parents anything?
A. Right.
Q. He never asked you to go somewhere in private; is that correct?
A. Right.
Q. He never took you anywhere in private?
A. Correct.
Q. Never turned off the lights, right?
A. Right.
Q. And it was summer time, right?
A. Yeah.

7

The transcript includes “organism” throughout instead of “orgasm.” This is a scrivenor’s error and I use the correct
term in this opinion.

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Q. So it was still light at this time?
A. Yes.
ECF No. 25-1, 493-94.
Borck’s attorney also contrasted some of the common symptoms Warner testified happen
to sexual assault victims against M’s actions. For example, Borck’s attorney had the stepmother
confirm M did not exhibit bed wetting, reversions to more childish behavior, or big personality
changes in the months after the incidents. ECF No. 25-1, 568-69.
Borck’s attorney also attempted to emphasize the differences in the accounts of the girls
from their self-reports written immediately after the incidents contrasted with their comments to
the police and, finally, at trial. While some aspects of the testimony remained fairly consistent,
some specifics appeared to fall away over time. For instance, although M’s written report noted
Borck slapped her rear end as “pay back,” she testified at trial that Borck never mentioned
anything about “pay back.” Other apparent inconsistencies include the exact number of times
Borck grabbed, tisted, or cupped M’s breasts, and whether Borck used one or two hands on each
occassion.
Borck’s attorney pursued the only defense available given Borck’s criminal history, the
damaging letters, and the relatively consistent testimony of the girls. That evidence, not any
testimony by Warner, resulted in Borck’s conviction. Even assuming a reasonably competent
attorney would have objected to Warner’s testimony, the failure to do so here did not prejudice
Borck.

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CONCLUSION
Petitioner’s Petition for Writ of Habeas Corpus (#2) is DENIED and this case is
DISMISSED. A Certificate of Appealability is denied on the basis that petitioner has not made a
substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 28th day of March, 2017.

______/s/ Michael McShane_______
Michael McShane
United States District Judge

17

- OPINION AND ORDER